UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ THE HOUSING AUTHORITY OF THE CITY OF PICHER, OKLAHOMA, Plaintiff,

v. UNITED STATES OF AMERICA, EX REL. SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant - Appellee, and
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OTTAWA, OKLAHOMA, Defendant - Appellant. No. 16-5159 (D.C. No. 4:14-CV -00322-CVE-PJC) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and MORITZ , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 11, 2017
Elisabeth A. Shumaker Clerk of Court2 In this interpleader ac tion, the Board of County Commissioners of the County of Ottawa, Oklahoma (the County) appeals the district court’s entry of summary judgment to the United States, on behalf of the Secretary of the Department of Housing and Urban De velopment (HUD). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND In the 1960s, the Housing Authority of the City of Picher, Oklahoma (PHA) began operating a low-income public housing project with financial assistance from HUD pursuant to a Consolidated Annual Cont ributions Contract (A CC). In 1983, the federal government designated a portion of Oklahoma, including the City of Picher, as the Tar Creek Superfund site due to health and environm ental hazards from extensive zinc and lead mining operations. In 2004, the stat e of Oklahoma began relocating Picher’s residents due to the he alth hazards and the risk of unexpected building collapse. In 2008, a tornado st ruck Picher and destroyed much of the housing project, rendering it uni nhabitable. Picher, whic h was located in Ottawa County, ceased municipal operations in 2009 and began involuntary dissolution proceedings the next year. After the tornado, the PHA obtained an insurance settlement of approximately $1.7 million and, for several ye ars, explored whether to rebuild the project in the nearby town of Fairland. The PHA even tually sought HUD’s permission to rebuild in Fairland, but HUD denied the request and di rected that the proj ect be terminated. When both HUD and the County requested th e approximately $1.2 million remaining3 in the PHA’s bank account, PHA filed an inte rpleader action in Oklahoma state court. HUD removed the case to federal court a nd moved for summar y judgment, arguing that the County was not entitled to the interpled funds becau se it was a stranger to the ACC, which expressly prohibited the creati on of any enforcement right in a third party; the County was not involved in the project; the County could not claim to be a successor to the PHA because the project no longer existed; and the interpled funds belonged to HUD under the plain terms of th e ACC. The County responded that the ACC was ambiguous, the County was the successor in interest to th e City of Picher, HUD waived any claim to the interpled funds by waiting almost six years to make a claim, and the County had an equitable clai m to at least a porti on of the interpled funds for services it supplied to the project. Meanwhile, the district court dismisse d the PHA from the action because it disclaimed any interest to the funds. After summary-judgment briefing was complete, the district court transferred the case to the Un ited States Court of Federal Claims, reasoning that it lacked jurisdictio n. The Claims Cour t concluded that it lacked jurisdiction and transferre d the case back to Oklahoma. After the re-transfer, the Ok lahoma district court determ ined that it in fact had jurisdiction and granted HUD’s motion for summary judgment. Applying federal law, the court first ruled that the ACC un ambiguously provided that all of the funds remaining after termination of the project belonged to HUD. It based that conclusion on the confluence of numerous contractual provisions, the most pertinent of which we outline.4 One contractual provision defined a “General Fund”: “All monies and investment securities receiv ed by or held for the account of the [PHA] in connection with the development, opera tion and improvement of projects in acco rdance with an ACC with HUD shall constitute the ‘General Fund.’” Aplt. App., Vol. I at 48. Another required the PHA to “deposit and i nvest all funds and i nvestment securities received by or held for the account of the [PHA] in connection with the development, operation and improvement of the projects . . . in accordance with the terms of [a] General Depository Agreement,” id. , which the parties had ex ecuted separately. The ACC defined “Operating receipts” as “all rents, revenues, income, and receipts accruing from, out of, or in connection with the owners hip or operation of [the] project.” Id. at 46. The ACC further required the PHA to purchase a variety of insurance coverages, including a “Commercia l Property [policy] . . . written with a blanket limit, on a replacement cost basi s, and with an agreed value clause eliminating any coinsurance provision.” Id. at 85. 1 It also required the PHA to use any insurance proceeds to “restore, rec onstruct, and/or repa ir any damaged or

1 The commercial-property insurance requi rement was set out in an attachment to the ACC that was referred to in Section 13 of the ACC: “The types of insurance required, or that should be purchased, and other requirements with respect to insurance coverage are listed in Part B, Attachment VII, of this ACC.” Aplt. App., Vol. I at 50. The district court did not di scuss this provision but based its view that the PHA was required to purchase insuranc e on another provision in Section 13, one requiring the PHA to “procure adequate insurance to prot ect the [PHA] from financial loss resulting from various hazards if the [PHA] determines that exposure to certain hazards exists.” Id. As the County points out, that provision did not require the PHA to purchase “various hazards” insu rance unless it deemed it necessary to do so. However, Attachment VII clearly required the PHA to purchase commercial property insurance.5 destroyed property of a proj ect, except with the writt en approval of HUD to the contrary.” Id. at 50–51. And perhaps most im portantly to this case, the ACC provided that in the event the project wa s terminated, “all project reserves shall become part of another project administ ered by the [PHA] in accordance with the terms of [the] ACC. If no other project(s) under manage ment exists, the remaining project reserves sh all be distributed as directed by HUD .” Id. at 51 (emphasis added). Here, HUD denied the PHA’s request to rebuild the project in Fairland and instead terminated the project and directed that the rema ining funds be returned to HUD. Hence, the district court conclude d that the funds belonged to HUD. The court acknowledged that the ACC permitted the PHA to pool funds unrelated to the project or HUD in the account where it ke pt project funds: “The [PHA] may . . . deposit into an account covered by the terms of the General Depository Agreement, by lump-sum transfers of funds from the depositories of other projects or enterprises of the [PHA] in which HUD has no financial interest , amounts necessary for current expenditures of it ems chargeable to all projects and enterprises of the [PHA].” Id. at 48 (emphasis added). But the court concluded that the insurance proceeds did not arise out of “other [PHA] projects or enterprises . . . in which HUD had no financial interest,” id. , but from an insurance polic y that the ACC required the PHA to maintain as part of its deal with HUD and that was paid for with federal grant
money.6 The court further concluded that even if the PHA had a clai m to the remaining funds, the ACC unambiguously prohibited thir d-party claims agai nst either the PHA or HUD: “[N]othing in this ACC shall be c onstrued as creating a ny right of any third party to enforce any provision of the ACC or to assert any clai m against HUD or the [PHA].” Id. at 55. And to the extent the Coun ty claimed a right to the remaining funds as the successor of the dissolved City of Pich er, the court pointed out a distinction between the PHA, which was a pa rty to the ACC, and the City of Picher, which was not. The court therefore reasoned that the County rema ined a stranger to the ACC. The district court addressed two other arguments the County made. It first rejected the contention that by waiting six years to make a cl aim on the insurance proceeds, HUD waived its clai m to the interpled funds. The court reasoned that HUD did not need to make a separate claim to the funds because the ACC vested HUD with the right to request the return of any project reserves in the General Fund (i.e., the PHA’s bank account subject to the Ge neral Depository Agreement) when the project was terminated. Second, the c ourt declined the County’s request for $135,912 in equitable relief for services the County clai med it had provided to the PHA between 2008 and 2013. The court conc luded that the provision of services to the PHA had no relationship to the ACC and th at many of the services were those the County was bound to provide as the c ounty in which the project was located.7 II. DISCUSSION We review an order granting summar y judgment de novo, “applying the same standards that the district c ourt should have applied.” Fields v. City of Tulsa , 753 F.3d 1000, 1008 (10th Cir. 2014) (internal quotation marks omitted). A “court shall grant summary judg ment if the movant shows that there is no genuine dispute as to any material fact and the movant is enti tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e examine the record and all reasona ble inferences that might be drawn from it in the light most favorable to the nonmoving party.” Fields , 753 F.3d at 1009 (internal quot ation marks omitted). After fully considering the record, th e parties’ arguments , and the governing law, we are convinced that the district court properly granted summary judgment to HUD. We therefore affirm th e district court’s judgment fo r substantially the reasons the district court provided. We add only the following. The County claims the district court overlooked or improperly analyzed a number of its arguments. But almost all of those arguments concern the PHA’s right to the funds, not the County’s. Although the County claims it “stepped ‘into the shoes’ of the City ( including [the] PHA )” when Picher was dissolved, Aplt. Opening Br. at 21 (emphasis added), the only lega l authority it cites, M. Anderson, Dissolving
Cities , 121 Yale L.J. 1364 (2012), concer ns succession to a dissolved city and makes no mention of a city’s public housing author ity. Further, as the Oklahoma Supreme Court explained in determini ng whether bonds issued by a housing authority were an indebtedness of the state, a housing aut hority is, by Oklahoma statute, “‘a public8 body corporate and politic’”—which is how the PHA described itself in its interpleader petition, see Aplt. App., Vol. I at 13—and therefore not “an agency or instrumentality of a city or county.” Boardman v. Okla. City Hous. Auth. , 445 P.2d 412, 416 (Okla. 1968) (quoting Okla. Stat. tit. 63, § 1055); accord Hon. Charles W.
Van , 11 Okla. Op. Atty. Gen. 482, Okla. A. G. Opin. No. 79-303, 1980 WL 114835, at *2 (Jan. 22, 1980) (“Pub lic housing authorities create d pursuant to [the Oklahoma Housing Authority Act, which includes § 1055] , are not instrumenta lities of the city or county within which they sit and, th erefore, are not subject to the Political Subdivisions Tort Claims Act.”). We ther efore conclude that the County failed to establish that it stepped in to the PHA’s shoes by virtue of Picher’s dissolution. Consequently, we need not address the Co unty’s contentions about the PHA’s rights to the funds that it claims the district court overlooked or improperly analyzed. III. CONCLUSION The judgment of the dist rict court is affirmed.

Entered for the Court
Monroe G. McKay Circuit Judge